Requisites of actionable doctor malpractice

If you are a victim of medical or doctor malpractice and you intend to file a medical lawsuit, the first thing you need to do is seek the help of medical lawyers or medical attorneys.

Your medical lawyer or medical attorney will study your case and determine whether or not your claims have merits. All these will depend on your circumstances, the facts surrounding the case and your state law.

State laws govern the viability of causes of action for medical or doctor malpractice. The laws vary in terms of time limits to bring suit (known as Medical Malpractice Statute of Limitations), qualifications of "expert" witnesses, cognizable theories of liability, and proper party defendants/proper party plaintiffs. Notwithstanding these differences, there are common requisites for all cases.

Competent medical lawyers or attorneys will tell you that before any physician can be held liable for doctor malpractice, he or she must owe a duty to patients. Otherwise his or her competency in performing that duty cannot be subject to scrutiny.

According to US jurisprudence a person is not bound to assist injured individuals in the absence of a special relationship with them, for instance doctor-patient or attorney-client relationship.

A doctor dining in a restaurant is not duty-bound to come forward and assist a fellow customer suffering a heart attack.

If the doctor merely continues with his meal and does nothing to help, the ailing person would have no cause of action for doctor malpractice against him, notwithstanding their harm.

However, please take note that once the doctor decides to assist the ailing customer, he or she becomes liable for any injury that results from any negligence during that assistance.

Once the requisite doctor-patient relationship is established, the doctor owes to the patient the duty to render care and treatment with that degree of skill, care, and diligence as possessed by or expected of a reasonably competent physician under the same or similar circumstances.

The "circumstances" include the area of medicine in which the physician practices, the customary or accepted practices of other physicians in the area (the "locality rule"), the level of equipment and facilities available at the time and in that locality, and the exigent circumstances, if any, surrounding the treatment or medical service rendered.

The requisite degree of skill and expertise under the circumstances is established by "expert testimony" from other practicing physicians who share the same or similar skill, training, certification, and experience as the allegedly negligent physician.

Finally, a doctor who has been negligent may not be the only defendant in a subsequent lawsuit. A hospital that has retained the doctor on its staff may be vicariously liable for the doctor's negligence under a theory of "respondeat superior" (let the master answer) that often holds an employer liable for the negligence of its employees.

Your doctor's liability carries with it vicarious liability. Ask medical lawyers or medical attorneys about it; they will gladly explain it to you in more detail.

More often, the doctor has "staff privileges" at the hospital, and the hospital will attempt to prove the limited role it plays in directing or supervising the doctor's work.

Also, a lot of physicians belong to private medical practices, such as limited partnerships or limited liability companies, that also may be vicariously liable for the negligence of their member doctors.

However, a doctor is generally liable for any negligence on the part of his assistants and staff in carrying out his orders or caring for his patients. Likewise, an attending physician is generally liable for any negligence on the part of interns and medical students under the physician's guidance.